Posted by Richard Salgado, Director, Law Enforcement and Information Security

The House of Representatives’ unanimous (419-0) passage of the Email Privacy Act (H.R. 699) is a decisive victory for Internet users, who deserve the highest privacy protections when governmental entities seek access to their data. The unanimous approval of the Email Privacy Act is a testament to the broad bipartisan support for this commonsense reform. Representatives Yoder (R-Kan.), Polis (D-Colo.), Goodlatte (R-Va.), and Conyers (D-Mich.) have been real leaders in helping to shepherd this important bill through the House of Representatives.

Enacted in 1986, ECPA makes distinctions that simply don’t match with what users reasonably should expect of privacy in 2016. An email, for example, may receive more robust privacy protections under ECPA depending on how old it is or whether it is in an opened or unopened state. Users don’t and shouldn’t expect that communications they send through or information they store with a provider will enjoy lower privacy protection based on these arbitrary and nonsensical distinctions.

The Email Privacy Act replaces the confusing array of rules that govern when the government can compel a provider to disclose user information with a simple warrant-for-content rule. In many ways, the Email Privacy Act is a modest, though important, codification of the status quo; it implements the 6th Circuit’s conclusion in 2010 that ECPA is unconstitutional to the extent it would permit the government to compel a service provider to disclose to the government a user’s electronic communications content without a warrant. This warrant-for-content rule has been observed by Google and other companies and the government alike since 2010.

The version of the Email Privacy Act that passed the House of Representatives today is the result of robust debate to address a broad array of competing concerns. We urge the Senate to move swiftly toward passage of this bill, and to reject further changes that would weaken the warrant-for-content rule reflected in the Email Privacy Act.